Summerville Family Law & Divorce Attorneyhttp://lowcountrydivorceandfamilylaw.com
Lowcountry Divorce & Family LawFri, 16 Feb 2018 14:37:44 +0000en-UShourly1https://wordpress.org/?v=4.9.4A Crisis of Civilityhttp://lowcountrydivorceandfamilylaw.com/a-crisis-of-civility/
http://lowcountrydivorceandfamilylaw.com/a-crisis-of-civility/#respondSat, 20 May 2017 04:10:30 +0000/?p=1559The end of this month marks seven years since I moved to the Lowcountry from the outskirts of Philadelphia, a city ironically—and perhaps unintentionally so—known as The City of Brotherly Love. Like so many other asylum seekers from the northeast, I fled not only the snow but also the frosty personalities of those who shovel […]

]]>The end of this month marks seven years since I moved to the Lowcountry from the outskirts of Philadelphia, a city ironically—and perhaps unintentionally so—known as The City of Brotherly Love. Like so many other asylum seekers from the northeast, I fled not only the snow but also the frosty personalities of those who shovel it, and I too was charmed by the courtesy and graciousness to which I became accustomed during my undergraduate work at Auburn University and my later experience in journalism in the Upstate. I missed the South, and was clamoring to return.

(I often say that, just as Caitlyn Jenner was born a man but claims to have always identified as a woman and required surgical removal of certain parts to finally be at peace, I may have been born in California and raised outside of Philadelphia, but I’ve always identified as a southerner and required the surgical removal of the northeast to finally ensure that my home was in harmony with my personality.)

When I arrived in Summerville seven years ago, natives were the norm and transplants the anomaly; now, it seems the other way around. For the most part, even with the floodgates having been opened to many refugees like myself, the traditional southern charm and kindness for which this area has always been known has somehow survived – the possible exception being in our Family Court, in which civility is showing signs of crisis.

Believe it or not, most lawyers aspire to civility. When Martin G. Murphy, Jr.—Lowcountry Divorce & Family Law, LLC’s newest attorney—is sworn in by the South Carolina Supreme Court and admitted to the South Carolina Bar on Monday, he will raise his right hand and take an oath that all Palmetto State attorneys before him have taken in one form or another. That oath includes a sworn affirmation as to civility:

To opposing parties and their counsel, I pledge fairness, integrity, and civility, not only in court, but also in all written and oral communications;

Murph comes to us having previously practiced law in New Jersey, where civility may be sworn but remains relative to the overall behavioral predispositions of a geographic area in which smiling and saying “hello” to strangers at the local supermarket is a sign not of traditional and expected gentility, but rather of latent mental illness. In fact, one of the major draws that brought Murph and his family here was the congeniality of the local Bar.

For the most part, our local Bar is wonderfully friendly and civil, a notion that astounds clients and other outside observers. I am asked all the time by clients and friends alike how I can maintain a close relationship with so many colleagues when they are occasional adversaries in the most hyperemotional of legal controversies. Often, clients even seem put off by the ease with which we attorneys communicate about other matters, about the practice of law in general, and about life overall as we await a few minutes before a Family Court Judge which can determine the course of the next few years of their lives.

The truth is, those relationships are essential. Part of the reason retaining counsel is so advisable is that the subordination of emotion to logic is vital, especially true in the most emotional of domestic matters. If litigants were able to set aside emotions and dispassionately approach issues inherent to the dissolution of their marital relationships or to the needs and interests of children in common, I’d be out of a job, and thankfully so. Instead, mothers and fathers and husbands and wives are understandably and often justifiably emotionally compromised, leaving people like me and my colleagues better equipped to solve problems and find stability.

It is civility that allows for those relationships to develop and flourish, and it is those relationships that can prevent clients from incurring unnecessary cost and dealing with unnecessary heartache and discontent, and even insulate children from being unnecessarily placed and caught in the middle.

A good example of this is my relationship with Donnie Gamache, a Summerville-based attorney who, like me, is known for being assertive, headstrong, and competitive. Assertiveness is often confused with incivility, though generally by those attorneys who for some reason have their own difficulties with the subordination of emotion to logic and therefore tend to inappropriately internalize the interaction inherent to domestic matters. Donnie and I know of each other’s capabilities, and we trust each other’s judgment, assessment of case and client strengths and weaknesses, and ability to [strenuously if necessary] ensure that our respective clients are similarly aware thereof. He and I are honest with one another, and if we must be firm or even unyielding, it is not something that either of us take as a personal or professional affront. As a result, we settle cases. We both know that unnecessary conflict will only result in our own enrichment – at the expense of our clients and their children.

I have similarly good relationships with attorneys all over the tri-county area. Many I count as close friends. These associations pay off for clients and their families, as we work to save money and preserve personal relationships as best possible under the circumstances. On the other hand, there are a few attorneys—some even being close friends—with whom I know that no case will ever be easy, whether it be because of a clash of personality or a difference in practice theory. In those cases, I know that my clients will be paying the price.

When civility wanes, see, it is the non-attorneys who bear the consequences. And, for that reason, I have been increasingly disheartened to see incivility on the rise.

This week, I heard from a female colleague a tale of extreme and inexcusable condescension from her male counterpart in a matter. All too often, unfortunately, it is my female colleagues who have to deal with incivility – it is not uncommon for male attorneys to assume that they are a paralegal working for someone else, to call them “dear” or “sweetie” or “darling” when the context demands otherwise, or to dismiss them as just a pretty face in a well-tailored suit.

Thankfully, as a man standing at six-foot-two-inches and upwards of 260 pounds, this isn’t something I have to deal with very often. My experience with incivility generally consists of condescension from upper-echelon attorneys who have been practicing since I was in grade school, and who will happily remind me of same. Occasionally, I’ll see my advocacy of my client’s best interests met with personal slights or even threats – this tends to happen when opposing counsel is too emotionally attached to a case, when the opposing party has lied to their attorney and the attorney is too prideful to admit it, or when the advocacy of my client’s position exacerbates an already inherent disadvantage on the other side.

More and more, though, I am hearing of attorneys who are not conducting themselves with any measure of courtesy in the courtroom – interrupting, objecting improperly, or addressing counterparts with a dismissive lack of respect. It also seems that pure petulance is on the rise, as is a lack of macro-level understanding of the long-term consequences of leveling inflammatory allegations and pursuing unnecessary conflict in the name of building unnecessary leverage.

Our clients may be at war, but our stock and trade should not be the perpetuation of needless strife through pejorative and ad hominem attacks, through patent dishonesty, and through outright disrespect. There is absolutely nothing wrong with being steadfast, resolute, and even unyielding in the context of a contested matter, but that should not be the starting position. Frankly, it is even okay to be unreasonable, but only if myriad opportunities to the contrary were afforded beforehand.

As attorneys, our duty—first and foremost—is to our client. This crisis of civility only serves as an abdication of that obligation which, if left unchecked, will only result in harm to those who need us most.

If this year’s presidential election has taught us anything, it is that none of us need to venture far when looking for a fight. While I have yet to meet with a prospective client looking for a divorce because of election-related marital strife, it has become abundantly clear that discord can develop due to any number of root causes.

Infidelity, reckless spending, and spousal abuse are standard fare in this business, but from time to time, the occasional spouse will seek to commence marital litigation based upon something a little less conventional.

For example, one man was dissatisfied with his marriage because his wife kept backing into things with their vehicles. Another woman was unhappy in her marriage in large part because, no matter how many times she warned her husband, he never put his dirty dishes in the dishwasher or even in the sink.

Having listened to and discussed a list of her husband’s undesirable behaviors that day, I reflected upon my own actions and bought flowers for my wonderful (and endlessly understanding) wife on my way home from the office.

“What are these for?” she asked me.

“I need to have a reason to buy flowers for my wife?” I responded. My internal monologue, however, was humming: holy crap, everything that the other guy does wrong, I do, too.

The truth is, it doesn’t have to be dirty dishes, dastardly dents, or differing viewpoints on taxes, immigration reform, and international trade policy – marital discord can come from anywhere.

“Irreconcilable differences,” that mainstay of divorce among the Hollywood set, is not among the grounds for divorce here in South Carolina, at least not right away. As noted elsewhere on LowcountryDivorceAndFamilyLaw.com, South Carolina requires that two people with irreconcilable differences live separate and apart for a continuous period of one year prior to filing an action for divorce in the absence of fault grounds such as adultery, desertion, physical cruelty, and habitual drunkenness and drug abuse.

That doesn’t mean, however, that two people who have consciously decided to part ways must wait in some form of quasi-postmarital limbo for an entire trip around the sun. So long as the parties have separated, we can commence an action seeking a Final Order of Separate Support and Maintenance, which would allow a husband and wife to life separately and apart as though unmarried while they wait out the statutory requirements for divorce absent fault. During such an action, the spouses can also work toward a resolution when it comes to custodial issues, financial issues, and other issues inherent to the dissolution of a marital relationship.

Many people around this state take great issue with the requirement that dissatisfied couples live separate and apart for a full year, and we’ll get to my feelings on that in a future blog post. In the meantime, understand that there are a host of options available to someone in such a position to move forward into the next chapter of life as smoothly as possible.

]]>http://lowcountrydivorceandfamilylaw.com/avoiding-postmarital-limbo/feed/0How to Determine Property Division in a Divorcehttp://lowcountrydivorceandfamilylaw.com/how-to-determine-property-division-in-a-divorce/
Thu, 01 Aug 2013 19:13:35 +0000http://www.lowcountrydivorceandfamilylaw.com/?p=1145“It’s just stuff,” you might say – but “stuff” is important. And it is important in the context of domestic litigation. Dividing property during a divorce can be a difficult task, especially when both spouses share significant assets. A house, retirement plans, businesses, rental property and brokerage accounts may take time to build together; separating […]

]]>“It’s just stuff,” you might say – but “stuff” is important. And it is important in the context of domestic litigation.

Dividing property during a divorce can be a difficult task, especially when both spouses share significant assets. A house, retirement plans, businesses, rental property and brokerage accounts may take time to build together; separating these assets can take more time and emotional energy if both individuals cannot agree the best way forward. Even in amicable situations, deciding who should get what is challenging. A contentious divorce can make things more difficult. I’ve seen people take a stubborn stand with regard to a coffeemaker – it’s not pretty.

In general, your primary focus should not be to divide assets based solely on current dollar value or, with the exception of heirlooms and such, emotional tie. Understanding which assets are in your best interest for short-term and long-term financial security, and developing a plan along those considerations, is generally the better approach.

Of course, having a thorough understanding of each asset will aid in your decisions. I am more than happy to guide you through this process, ascertaining what assets are worth fighting over (hint: you can buy a new coffeemaker), what the tax implications of certain assets may be, as well as other considerations.

Non-Marital and Marital Property

Before determining which property to divide, you will want to consider the legal difference between non-marital property and marital property. Details may differ among states, but for those of you in Charleston, Summerville, and every area in between, non-marital property is defined as:

Property acquired by inheritance, devise, bequest or gift from someone other than the spouse.

Property acquired by either party before the marriage and property acquired after the happening of the earliest of either: (a) a temporary order in divorce/separate maintenance action; (b) formal signing of written property or marital settlement agreement; or (c) the entry of permanent order of separate maintenance or of an order approving property/marital settlement agreement.

Property acquired by either party in exchange for property in the first or second part above.

Property excluded by written contract.

Any increase in value of non-marital property, except to the extent that increase in value happened because of effort from other spouse.

While these cover non-marital property, any one of the above may lose that status if all or a portion is commingled with marital property to the point where it becomes impossible to trace which is which. For instance, a deposit from an inheritance into a joint bank account will most likely be considered marital property. This is called “transmutation.” Other ways that non-marital property may be considered transmuted:

Property is utilized by both spouses in support of the marriage

Property is titled jointly

Property is otherwise used by the spouses in such a manner that it shows an intent by the spouses to make that property marital property.

With some exceptions, all property acquired during your marriage becomes marital property. Although many people assume that they are not entitled to property held only in the other spouse’s name, that’s not necessarily true. Here in South Carolina, marital property is generally defined as:

All real and personal property acquired by parties during marriage, and which is owned of the date of filing or commencement of marital litigation, regardless of how legal title is held.

Enhancement/appreciation of marital assets due to efforts of either spouse during marriage.

Gifts between spouses during marriage.

All vested and non-vested benefits/funds accrued during marriage.

Real property held by parties as joint tenants with right of survivorship, whether acquired before or during marriage.

Generally, when it comes to matters of retirement plans and the like, increases during the marriage from separately owned property—such as a 401(k) that predates the marriage—is also considered marital property. There are some states, however, that differentiates how the appreciation of the property is determined for marital property purposes.

I am fortunate that this web site receives traffic from outside of the Charleston, South Carolina area. For those from the outside of our wonderful state looking in, knowing whether you reside in a Community Property state or Equitable Distribution state is helpful in determining how both categories of property are treated. In Community Property states, both spouses are considered equal owners and marital property is divided equally. Currently, there are nine states that follow Community Property laws.

For those here in South Carolina, know that the Palmetto State is not one of those nine.

Equitable Distribution applies to the remaining 41 states, including our beautiful state. Equal settlement of property is not required in these states; however, the expectation is that property division will be fair and equitable. As such, in most cases, the Court will begin with a 50-50 approach, and several different factors may determine whether the Court advances the proverbial football away from that proverbial “50-yard line.” In fact, 16 different factors are considered, when appropriate and applicable:

Desirability of retaining the marital home when (a) it is desirable to do so, (b) it is in the best interest of a child or party, and (c) it is financially feasible to retain.

Need for additional training or education in order for a spouse to achieve one’s income potential.

Vested retirement benefits of each spouse.

Contribution to the marriage by each spouse, including care and education of kids, services as a homemaker.

Support being paid or received by either spouse with respect to any prior marriage or child.

Separate maintenance (temporary spousal support) or alimony which has been awarded.

The duration of the parties’ marriage.

Child custody arrangements, insofar as property affects same.

The physical health of the spouses, and any related special needs.

The emotional health of the spouses.

The tax aspects and implications of divorce, recognizing that the high wage earner has the benefit of deductions, while low wage earners have the burden of paying more tax.

The overall financial and economic circumstances of parties, including each spouse’s income, earning potential, and more.

Any fault or marital misconduct of the party, whether or not said misconduct is used for a fault ground (i.e. adultery) for divorce, the argument being, “well, he’s the one that ran off with the personal trainer – why should he get half of ___insert item here___?”

Liens or encumbrances on marital property and separate property/debts.

Non-marital property of each spouse.

Other factors necessary to do equity and justice between the parties.

You will be quizzed on these later. Just kidding – it’s quite a bit to remember, and not everything is applicable in every matter, but it is always advisable to keep the criteria and considerations in mind.

Active and Passive Appreciation

Marital property assets can increase in value in one of two ways: active and passive. Active appreciation may occur based on direct or indirect actions by one spouse. An example of this is advice and ideas that your spouse gave that helped your business grow.

Passive appreciation is the result of outside forces such as inflation and other changes in the market. Consider the increase in value in a property even though you and your spouse made no improvements. This would be considered passive appreciation of the asset since neither of you contributed to the increase in value.

Important in considering matters of appreciation, whether active or passive, is understanding the relevant date for determining marital assets. For the sake of valuation, it is important to look at the date of the parties’ marriage, as well as the date of the filing of a Complaint for Divorce, or Complaint for Separate Support and Maintenance. That being said, the Court may consider changes to the value of property which occur after filing – active appreciation (i.e. contributing to a retirement account after filing) is looked upon differently than passive appreciation (i.e. how much the retirement account has increased on its own due to changes in the market).

Dividing Property with Your Spouse

When it comes to personal property, especially those items you have in your house and pass by on an everyday basis, the question I like to ask most is, “is it worth it?” Really, the answer to that question remains inherent to the nature of the property. A couple on the express train to Splitsville has every right to argue over things as small as the contents of the kitchen drawers but, in my experience, arguing over knives and forks is like a baseball coach kicking dirt at an umpire and arguing over balls and strikes: it’s not going to make a tremendous amount of difference, it’s likely only going to make everything a little dirtier, it’s not going to end well, and it’s going to make future engagements a little more awkward.

Some items, of course, are more important than knives and forks. And even for those relatively insignificant items, armed with an understanding of how assets appreciate and the property categories recognized in divorce court, you can begin dividing property with your spouse. The following tips will help you get started:

Make a List of Personal Assets. List all jointly owned assets and agree on omitting truly insignificant items. For instance, furniture that has little or no value can simply be listed as “family room furniture.”

Value Items on the List. Agree to a specific amount on the value of assets to consider such as anything at or above $500. Seek counsel from your attorney about a business, residential property or any other difficult item to value. Professional advice from an appraiser may help you to value antiques. An accountant or actuary can help to value pension plans. Any debt associated with an item should be subtracted from the current value.

Decide on the Logical Owner of Each Asset. The next step is to go through the list and decide who should keep each asset. Begin with the most expensive and trade off on the least expensive items. Keep a tally of the value if you want to have an equal split of the total.

Most importantly, remain open and honest with your attorney—whether it’s me or anyone else—and spouse about everything you have gained throughout the marriage. Whether it is a secret bank account opened years before or the real value of your pension plan, serious penalties may arise from hiding property during divorce proceedings.

Overall, though, it is just “stuff.” It may be your “stuff” or it may be the other spouse’s “stuff.” As a husband and father who always keeps an eye on the budget and the bottom line, and as an attorney who believes that he’ll get more referral business from happy clients who have survived this process as unscathed and as inexpensively as possible, keep in mind two important things:

The more you do, in terms of valuing assets and engaging in reasonable discussion with your spouse about those assets, the less that any attorney—whether it’s me or anyone else—will have to do, and the cheaper things will ultimately be.

There is a value in moving on, turning a page, and starting anew. We can fight ‘till we drop for every stitch of fabric and every piece of wall art in your house, but often folks find that letting go of some items—even some treasured ones—makes the process easier and quicker, and that being able to move forward that much quicker rather than dwell on things is worth a whole lot more than some dumb coffeemaker.

]]>Sharing Household Chores Leads to Divorce, Study Sayshttp://lowcountrydivorceandfamilylaw.com/sharing-household-chores-leads-to-divorce-study-says/
Fri, 28 Sep 2012 16:49:13 +0000http://www.lowcountrydivorceandfamilylaw.com/?p=1092While “desertion” may indeed be one of four “fault” grounds for divorce recognized by the Family Court here in the Palmetto State, “desertion of household chores” is not. Nevertheless, a new study conducted in Norway entitled “Equality in the Home” has apparently found a correlation between the rate of divorce and the extent to which […]

]]>While “desertion” may indeed be one of four “fault” grounds for divorce recognized by the Family Court here in the Palmetto State, “desertion of household chores” is not.

Nevertheless, a new study conducted in Norway entitled “Equality in the Home” has apparently found a correlation between the rate of divorce and the extent to which a couple shares housework — finding that marriages in which the wife does the vast majority of housework tend to last longer than those marriages in which the couple’s attempt to find a balance.

Dr Frank Furedi, Sociology professor at the University of Canterbury, said the study made sense as chore sharing took place more among couples from middle class professional backgrounds, where divorce rates are known to be high.

“These people are extremely sensitive to making sure everything is formal, laid out and contractual. That does make for a fairly fraught relationship,” he told the Daily Telegraph.

“The more you organise your relationship, the more you work out diaries and schedules, the more it becomes a business relationship than an intimate, loving spontaneous one.

“That tends to encourage a conflict of interest rather than finding harmonious resolutions.” He said while the survey applied to Norway, he was confident the results would be the same in the UK.

Frankly, it sounds like hogwash to me. Or, as the Brits like to say, bollocks.

I am a divorce attorney. As such, I have the opportunity to help people achieve stability and stand up for their rights as they manage the process of moving on to the next chapter in their lives. In that role, I also have the chance to see what has contributed to marital discord and what has not. While neglect of the “honey-do” list has come up from time to time as ancillary issues in the dissolution of a marriage, I have yet to see that reason as the lynchpin for marital demise.

And I certainly haven’t seen someone come into my office and say, “Jeff, we’re getting a divorce because … well … he *sniff* insists upon taking out the *sniff* garbage every night and makes the bed every morning!”

As I said — hogwash.

While I may have witnessed a number of marriages stumble and others flourish, and while that may provide me with some insight as to what makes a good marriage, there is no single solution. I’ll tell you, however, what does not work … going home and saying, “honey, b-but the Norwegians say that there’s a greater chance we’ll divorce if I do the dishes,” probably isn’t the best idea.

]]>Build Memories With Those Kids!http://lowcountrydivorceandfamilylaw.com/build-memories-with-those-kids/
Tue, 25 Sep 2012 17:18:38 +0000http://www.lowcountrydivorceandfamilylaw.com/?p=1087In a blog post published last week, Two Can Be Better Than One, I wrote briefly about my own childhood as a byproduct of marital litigation, and in the process I touched upon how I have fond memories of my childhood in both my mother’s house and father’s house. A September 18, 2012 piece by […]

]]>In a blog post published last week, Two Can Be Better Than One, I wrote briefly about my own childhood as a byproduct of marital litigation, and in the process I touched upon how I have fond memories of my childhood in both my mother’s house and father’s house.

A September 18, 2012 piece by Huffington Post blogger Lois Tarter provides tips for creating memories with children, directed at those parents currently embroiled in marital litigation or those who have are going through marital litigation. While the full piece can be found HERE, Ms. Tarter’s six ideas are as follows:

Now You’re Cooking:The kitchen is a great place for the family to get creative and make new memories. Once a week, let your kids make dinner. Head to the store together and buy the goodies. Then, get cooking! Make sure to use family recipes so traditions are kept alive.

Hip-Hip-Hooray for a Vacay: Plan a vacation for you and your kids that is affordable. It doesn’t have to be anything extravagant — maybe just a day trip to the zoo or a picnic in the park. Either way, a change of scenery creates new memories that can last for everyone.

Ready to Redecorate: Your home will probably go through some changes when your ex moves out. Show your children how to redecorate on a budget. It’s fun to paint a room or change or rearrange it.

Movie Night: Watch a movie as a family at the local theater or at home. There’s nothing like being at home and cuddling up with some popcorn together. Make this a regular event.

Go into Business: Your kids’ opportunity to make their first dollar is always an indelible memory. There are so many fun ways to help them build a little business. Start a baked good business at their school. A lemonade stand is sure to attract lots of neighbors. These are experiences they won’t forget.

The Great Outdoors: Why not go camping outside in the backyard? Pitch a tent and sleep out there one night. Don’t forget the ghost stories and the hotdogs and bug spray. If you don’t have a backyard, maybe you could borrow a friends yard. Be creative and your kids will love it!

I love it. These are, for the most part, things that can be done on a tight, shoestring budget. So get started!

]]>Two Can Be Better Than Onehttp://lowcountrydivorceandfamilylaw.com/two-can-be-better-than-one/
Tue, 18 Sep 2012 17:17:29 +0000http://www.lowcountrydivorceandfamilylaw.com/?p=1084My parents split up when I was about six years old. While bearing witness to marital discord and subsequently being mired in the middle of a separation and divorce is certainly not the recommended path for any child, I can say without equivocation that I am the husband that I am, the father that I […]

]]>My parents split up when I was about six years old. While bearing witness to marital discord and subsequently being mired in the middle of a separation and divorce is certainly not the recommended path for any child, I can say without equivocation that I am the husband that I am, the father that I am, the attorney that I am, and the person that I am because of the unique–and unfortunately decreasingly so–nature of my childhood.

I can also say, beyond a shadow of a doubt, that two ended up being better than one.

To insinuate that I was completely insulated from the drama that accompanied my own parents’ divorce would be a lie. Prior to their separation, when I was likely four or five, I distinctly recall hearing the yelling and screaming and banging of pots and pans from the kitchen downstairs. While I can still envision in my mind’s eye my bedroom set and the rest of my surroundings while my parents were engaged in such behavior, had my parents not separated when they did, I could have been forced to grow up in a household–one household–in which everyone was walking on eggshells, dependent upon inane smalltalk, rather than acknowledging the giant, miserable elephant in the room.

Instead, I had the opportunity to grow up in two households. Two happy households. Two households in which I knew that both my mother and my father would move Heaven and Earth to ensure that my needs were met, that I was safe, that I was doing well in school, and that I was happy and as insulated as possible as the drama of yesterday gave way to the “new normal” of tomorrow.

At my mother’s house, where I spent the majority of my time, I grew to be self-sufficient as the only child of a single mom — and I am very much the husband that I am because of what I was taught. I still know my way around a kitchen. I still find ironing to be oddly soothing. At my father’s house, where I spent many weekends and summers, I felt the unconditional love of a parent who did not get to see his child every day — I am very much the father that I am because of my father; even though I get to see my children every day, I try to treat every moment as precious.

And, better yet, because of a situation that seems so unbearably awful for so many parents at the outset, I had the opportunity to build lasting memories with two parents, in two households. I remember cooking lobster in the rain on camping trips with my mother to Mount Desert Island in Maine and catching dozens of fish on Lake George in New York. I remember equally fondly the baseball games–Nolan Ryan! The 1987 Cardinals!–I attended with my father.

I am who I am because of that not-so-unique childhood, and I would not change anything even if given the chance.

So many times, I sit down with mothers or fathers who come into my office, generally either on the cusp of marital litigation or already feeling stuck in the process. Those worth their salt are more concerned about the impact the divorce will have upon their children than they are worried how the litigation will affect their 401(k).

They worry about their children adjusting to their new circumstances. They worry about whether their parental counterpart will somehow sour the children against them. They worry about the kinds of memories that the children will have, about whether they will be able to provide them with the same sort of childhood that they themselves enjoyed.

From firsthand experience, I can tell you that it is stability that matters. Stability in a child’s life breeds happiness, and happiness brings about good grades, social competence, and development into a responsible, self-sufficient adult.

In some cases, both parents understand the need for stability and put the needs of the children ahead of their own needs, desires, and ego. Other times, however, one or both parents need lessons in proper prioritizing, and it is through the litigation process that such a lesson can be taught. In marital litigation, it has been my experience that those who appear vindictive rarely achieve their goals, and those who are undoubtedly more focused upon their own needs rather than those of their children likely will be exposed as such.

Here in the Palmetto State, in the Family Court it is the best interests of the children that controls. As a living, breathing byproduct of marital litigation, I am fortunate that both of my parents put my needs ahead of those of their own. I was afforded a tremendous childhood, and my fond recollections of that childhood stand as evidence which countermands the notion that divorce somehow precludes children from having the depth of experience that they might have otherwise enjoyed but for their parents’ divorce.

]]>NFL Star Arrest Raises Awareness for Domestic Violencehttp://lowcountrydivorceandfamilylaw.com/nfl-star-arrest-raises-awareness-for-domestic-violence/
Tue, 14 Aug 2012 20:05:01 +0000http://www.lowcountrydivorceandfamilylaw.com/?p=1021Another month, another NFL standout has become involved in a domestic violence incident. Back in April, former Dallas Cowboys Pro Bowl DB Deion Sanders was allegedly attacked by his estranged wife right in front of his children. On Sunday, August 12, 2012, former Miami Dolphins WR Chad Johnson–formerly known as “Chad Ochocinco”–was released from prison […]

These two stories jumped out at me for one reason: how the incident was handled in the immediate aftermath.

In the case of “Neon” Deion Sanders, he actually tweeted photos of his children filling out police reports. While I understand and advocate building a record, his involvement of his children at all was troubling–their “statements” should have been reserved for a therapist or Guardianad Litem–and his public tweeting of such photos reeked of someone focused on generating sympathy for himself rather than protecting his children.

In the case of Chad Johnson, it was the reaction of his wife that impressed me. From the New York Daily News, Ms. Lozada’s statement (emphasis mine):

“It is with great sadness and much trepidation that I release this statement addressing the domestic violence incident that happened this past Saturday,” she said. “I am deeply disappointed that Chad has failed to take responsibility for his actions and made false accusations against me, it is my sincere hope that he seeks the help he needs to overcome his troubles.

“Domestic violence is not okay and hopefully my taking a stand will help encourage other women to break their silence as well. I’m grateful to my family, friends and fans for the outpouring of support during this difficult time.”

Every day, there are thousands and thousands of women across the country dealing with domestic violence — and those are just the numbers that are reported. Here are some alarming statistics:

Between 1998 and 2002, of the 3,500,000 violent crimes committed against family members, nearly half (49%) were crimes against spouses. 84% of spousal abuse victims were women, and 86% of abuse against dating partners (boyfriends, girlfriends, etc.) were women. Men accounted for 83% of all spouse murderers, and 75% of boyfriend/girlfriend killers. (Source: U.S. Department of Justice)

Approximately 1,300,000 women and 835,000 men are physically assaulted by a spouse or boyfriend/girlfriend each year in the United States. (Source: U.S. Department of Justice)

According to the 1991 Uniform Crime Report from the Federal Bureau of Investigation, a woman is beaten every fifteen (15) seconds. According to the U.S. Department of Justice numbers above, it works out to be every twenty-four (24) seconds. Both are intolerable.

Only a portion of incidents are reported. The American Medical Association estimates that approximately four million (4,000,000) women are victims of assaults by husbands and boyfriends each year, and that roughly one out of every four women will be abused by a partner in her lifetime. (Source: ““Violence Against Women”, CQ Researcher, Congressional Quarterly,
Inc., Vol. 3 No.8, February 1993, p. 171)

A 1992 congressional report found that domestic violence incidents were, at that time, the leading cause of injury for women aged 15 to 44 here in the United States. That was more than rapes, muggings and automobile wrecks combined. (Source: “Violence Against Women, A Majority Staff Report,” Committee on the Judiciary, United States Senate, 102nd Congress, October 1992, p.3.)

Here in South Carolina, victims of domestic violence have options, some of which are spelled out on the Domestic Violence & Your Rights page HERE. Further, in cases in which minor children are involved, pursuant to S.C. Code Ann. § 63-15-40 (2009), the Family Court has been specifically directed in this state to consider evidence of domestic violence in making decisions with regard to child custody disputes.

At the end of the day, what really matters is awareness. I was happy to see that the soon-to-be ex wife of Chad Johnson seems to understand that, and is using her unfortunate situation as a means of raising awareness to what is going on.

]]>Yes, Lottery Proceeds Can Be Marital Property. (Sorry.)http://lowcountrydivorceandfamilylaw.com/yes-lottery-proceeds-are-likely-marital-property-sorry/
Mon, 06 Aug 2012 17:19:35 +0000http://www.lowcountrydivorceandfamilylaw.com/?p=1010While some wives might be fond of saying that they “won the lottery” when they married their husbands, the really lucky ones have husbands who win the lottery and surprise them with the proceeds. That’s what’s happening in nearby Cross, South Carolina where, according to Live 5 News, a local man won $500,000 on the […]

CROSS, SC (WCSC) – Lottery officials say the Cross man who won $500,000 on a Palmetto Cash 5 ticket last week still has not told his wife about his lucky day.

The man won the money last Wednesday night, but told officials he left his wife sleeping in bed to drive to Columbia to collect his winnings.

The money will be used to pay off the couple’s house and to buy new vehicles.

“I’m her prize now,” he joked.

Because the man paid $1 extra for a multiplier, the prize jumped from $100,000 to $500,000. Officials say the odds of winning $500,000 playing Palmetto Cash 5 are 1 in 8,031,072.

While we could go back and forth all day about the inherent marital wisdom of winning the lottery, earmarking the proceeds, and not telling your spouse about it, one thing that is more easily settled is how the Family Courts in the Palmetto State treat lottery proceeds insofar as marital property is concerned.

Pursuant to S.C. Code § 20-3-630, and subject to a few exceptions, marital property is defined as “all real and personal property which has been acquired by the parties during the marriage and which is owned as of the date of filing or commencement of marital litigation … regardless of how legal title is held.” So long as no action for divorce or separate support and maintenance has been filed prior to the winning ticket being sold, lottery winnings would be considered marital property and subject to equitable distribution should it prove true that money cannot buy marital happiness and a subsequent action for divorce or separate support and maintenance be filed.

Should a new domestic action indeed be filed, however, then the proceeds from the winnings are indeed subject to equitable distribution. Here in the Palmetto State, equitable distribution is controlled by S.C. Code § 20-3-620, which sets forth the factors considered by the court in apportioning property. Those factors include, but are certainly not limited to, incidences of marital misconduct, current and potential financial condition, health of each spouse, and more, and the statutory factor analysis has been ratified in 2003 as the appropriate method of apportioning lottery proceeds by the South Carolina Supreme Court in Thomas v. Thomas.

The hope, of course, is that domestic litigation should not be necessary at all. To best avoid marital litigation, it is my advice as both as a happily married former child of divorce and as a family law practitioner to be sure to communicate well with your spouse. Winning $500,000 in the state lottery is a major marital event; the wise course of action would have been to involve the other spouse from the beginning, and let her share in the surprise and glee.

Then again, if everyone followed the wise course of action and communicated appropriately with their spouse, I’d be out of a job.

]]>In Domestic Litigation, Relationships Are Criticalhttp://lowcountrydivorceandfamilylaw.com/in-domestic-litigation-relationships-are-critical/
Wed, 01 Aug 2012 20:35:08 +0000http://www.lowcountrydivorceandfamilylaw.com/?p=999As peculiar as it might appear in the context of a website all about divorces, custody battles and various other aspects of domestic litigation often viewed as more divisive than unifying, and as obvious as it might seem to those of us who try day in and day out to conduct ourselves appropriately and even […]

]]>As peculiar as it might appear in the context of a website all about divorces, custody battles and various other aspects of domestic litigation often viewed as more divisive than unifying, and as obvious as it might seem to those of us who try day in and day out to conduct ourselves appropriately and even admirably, maintaining good relationships is an absolute must when it comes to engaging in continuing domestic litigation.

And that goes for relationships not only between soon-to-be former spouses or co-parents, but between individual spouses and parents and those inextricably intertwined with the lives of any children involved.

Burying the Hatchet (or At Least Trying To)

In cases in which children are involved, maintaining a decent relationship with an estranged spouse or co-parent is preferable to the alternative. Inevitably, down the road, the two parties will be sitting in the same bleachers at sporting events, in the same auditorium for graduations, and on the same side of the aisle for weddings.

Pete Wyckoff, a real estate attorney here in Summerville, South Carolina, is fond of recalling his days years ago practicing family law, and once told me that he would ask male clients whether they wanted “to be that dad who was invited to barbecues and graduations and got to walk their daughter down the aisle,” or whether they wanted to be “that jerk who isn’t welcome anymore.”

I have a different way of explaining things–perhaps gleaned from myself being that child of divorce sometimes feeling as though I was left in the middle–and I believe that it applies equally to both men and women engaged in domestic litigation: During a divorce involving children and even after those proceedings reach fruition, the two now-separated co-parents have two available relationships between them — a business relationship and a personal relationship.

The business relationship is a partnership: those two now-separated co-parents are business partners, their “product” or “widget” is their child or children, and they must do everything possible to maintain enough of a businesslike relationship to produce the best possible “widget” in spite of the changed circumstances. That means that the two of them should ideally be able to be in the room together, and should ideally be capable of working well enough together to make those difficult and important health, educational and extracurricular decisions that shape and prepare every child to be a healthy, prosperous and–at the very least–a self-sustainable adult.

Some co-parents are better prepared for that than others.

Some are just collectively incapable of working with one another, and every spark of conflict becomes an absolute conflagration. Those parents require structure, generally in the form of a Court Order or agreement that sets out guidelines for visitation, conduct, restraints and everything in between that are specific enough to eliminate natural pinch-points that could lead to sparks, but is not so specific that one party or the other will be in violation of that Order or agreement on a given day.

Others are just predisposed toward obstructionism, and require strict judicial incentive to work well enough with their counterpart to ensure the manufacture of worthwhile widgets. That incentive can be provided by a finding of contempt of court following an enforcement action brought about after the repeated–or even singular–intentional violation of a prior Court Order or court-ratified agreement. Having fines, fees, sanctions and jail time on the table goes a long way to ensuring that the troublesome parent behaves him- or herself at the next Little League game.

The personal relationship, the second of those two relationships available to co-parents during or after domestic proceedings, is something that can come along down the road, if necessary. That’s the interpersonal relationship that goes above and beyond the bare minimum required by the business relationship; it could involve shared birthday parties, car pools, family events, and the like.

From personal experience, I can tell you that personal relationships do not always come about. From professional experience, however, I can tell you that they certainly sometimes do. There is nothing better than seeing people who have survived contentious litigation working extremely well to establish a good personal relationship for the sake of their child.

Staying On the Good Side of Anyone Who Matters

Sometimes, however, the complete degradation of a relationship between parents or spouses is utterly unavoidable. Sometimes, those spouses and parents have their attorneys on speed dial for years and practically obsess about edging out their counterpart whenever the opportunity to grab an advantage presents itself.

Whether involved in litigation anticipated to be ongoing long after that Final Hearing, or whether involved in litigation expected to end with a final determination of matters of custody, visitation and such, it is always essential to maintain solid personal relationships with anyone and everyone relevant to your particular case.

While brown-nosing is never good, often reeks of ulterior motives, and can certainly backfire, it is nonetheless absolutely essential to maintain the best possible relationship with any and all teachers, caregivers, coaches, counselors and others who see the child or children on a regular enough basis to have a sense of how that child is feeling, and whether or not something is wrong. Request a parent-teacher conference. Stay late after that soccer game to speak with the coach. Do whatever is necessary to provide that person with the impression that the best interests of the child are perpetually at the forefront of mind, and that the respective lives of parent and child are prioritized properly.

Also, avoid appearing vindictive. I often counsel clients that the person who seems most vindictive rarely achieves their goals, and I stand by that. In terms of maintaining personal relationships with those people inextricably intertwined within the lives of the children, always try to be the parent who never speaks ill of the other. First, it’s better that way for the children. Second, it shows focus solely on the best interests of the children. Finally, it lays the foundation for appropriate demeanor, so when the other parent speaks ill of you, whatever is being said will seem immediately out of character, exaggerated, and wholly indicative of someone hell-bent on being petty.

While I am very much a fan of taking the proverbial gloves off and engaging in a fight when a fight is necessary, at all times discourse should be truthful, professional, and of the sort that further subsequent review will show that all such conduct and contact was justified and appropriate. Credibility is difficult to build but very easy to lose, and it is difficult down the road to argue the merits of your position when your conduct has left you with unclean hands.

On a personal level, I try to remember to deal with everyone how I would like to be dealt with myself. There are ways to be strict, to argue strenuously, and to be extremely persuasive without crossing that line into being unprofessional, impolite or uncouth. In terms of maintaining interpersonal relationships, I would much rather allow someone else to burn a particular bridge than to do it myself, and I will do everything within reason to keep that bridge from burning. Sometimes, when the other party is unavoidably hurt or just unable to curtail pettiness in favor of a continued relationship in one form or another, burning that bridge is unfortunately inevitable. But it is never, ever of my doing.

Relationships are essential, and domestic litigation has a way of relying upon interpersonal relationships like no other area of law. Before you speak, think. So long as you think perceptionally, and be wary of our your words, actions, behavior and conduct will be perceived down the road, you’ll be fine.

]]>The ‘Personal Service’ Promisehttp://lowcountrydivorceandfamilylaw.com/the-personal-service-promise/
Tue, 31 Jul 2012 14:07:21 +0000http://www.lowcountrydivorceandfamilylaw.com/?p=993Family law is inherently and often intensely emotional. You deserve an attorney who is going to give you personal attention, who will know your story as well as you do, and who can represent you with the passion and drive that you would have if you represented yourself. [Read More]

My name is Jeff Schreiber. I am the attorney at Lowcountry Divorce & Family Law. The “Personal Service” Promise is my promise to you that I will treat you exactly how I would want to be treated, that I will know your case and your story as well as you know your case and your story, and that I will advocate for you as passionately and devotedly as I would want someone to advocate for me.

Being a solo practitioner provides me with the opportunity to have my hands in every aspect of your case. When you come in for a consultation–I don’t believe that you should have to pay to have your questions answered–you will be meeting with me. When you receive legal documents for review, you will receive them from me. When you call with questions, or for a status update, you will talk to me. When you walk into that courtroom, at your side will be me.

Family law is inherently, and often intensely, emotional. You deserve an attorney who will ensure that your questions are answered, that your options are weighed, and that will fight for you, for your children if you have any, and for your needs going forward.

I am a big believer in stability. I believe that stability helps people leaving broken relationships find peace. I believe that stability provides children with a way to adjust to the “new normal” in a time of such marked transition. Sometimes, stability comes easy; other times, stability has to be fought for. Either way, with the “Personal Service” Promise, you can rest assured that reaching that stability in your case is as important to me as it is to you.